There has been a substantial rise in the use of electronic cigarettes since smoking in public areas, including the workplace, was banned in 2006. The organisation Action on Smoking and Health (ASH), estimates that around 2.1 million adults currently use electronic cigarettes. This leads to a dilemma for employers about whether to permit employees to use electronic cigarettes at work.
What the law says
E-cigarettes are battery powered devices designed to replicate smoking behaviour without the use of tobacco. They turn nicotine, flavour and other chemicals into a vapour that is inhaled by the user. The exhaled vapour can be seen and some products also have a light at the tip which illuminates when the user inhales.
Smoking in enclosed or substantially enclosed workplaces in England has been prohibited since 1 July 2007 (under the Health Act 2006) in order to reduce the health risks associated with tobacco. In view of the fact that e-cigarettes do not use tobacco it is very unlikely that e-cigarettes are covered by the smoking ban in England, although other countries such as Canada, Denmark and Australia have taken the step to ban them.
Should employers therefore allow employees to use e-cigarettes in the workplace?
Unfortunately, there is no conclusive medical opinion on the safety of e-cigarettes to assist employers in making this decision. A 2008 review by the World Health Organisation found that there has been no rigorous, peer reviewed studies which conclude that the e-cigarette is a safe and effective nicotine replacement therapy. The British Medical Association (“BMA”) has advocated for stronger controls covering where e-cigarettes can be used in order to protect others from being exposed to e-cigarette vapours and to ensure their use does not lead people to believe it is acceptable to smoke or reinforce the “normalcy” of smoking behaviour. In light of these concerns the BMA believes the existing smoke free legislation in the UK should be extended to include vapour from e-cigarettes. Certainly, e-cigarettes are to be licensed as a medicine in the UK from 2016 in response to concerns about their lack of regulation.
Employers also need to be aware of their common law and statutory duties to protect the health and safety of their employees. Some employees may argue that their employers should allow them to use e-cigarettes in the workplace as a supportive measure to assist them in giving up smoking which should in turn lead to a healthier lifestyle. However, employers may be concerned that such devices could upset other employees, particularly if they are pregnant, trying to give up smoking or are concerned about the vapour from e-cigarettes.
A further consideration for employers is whether using e-cigarettes in the workplace fits with the professional image of the organisation and, if permitted, could be seen to “normalise” smoking. Although there is uncertainty about the harmfulness of the vapour, employees may, at the very least, find the vapour distracting.
Whilst using e-cigarettes in the workplace is not prohibited and employers do not have to ban the use of e-cigarettes, they equally do not have to agree to e-cigarettes being used in the workplace, and therefore must decide what approach best fits with the ethos of the organisation.
Practical steps for employers
If you do decide to prevent employees from using e-cigarettes in the workplace then we recommend taking the following steps:
• If you do not currently have a no-smoking policy or a drugs/alcohol policy then introduce such policies and include details of your approach to e-cigarettes in them.
• Alternatively, amend any existing no-smoking policy to include details of your approach to e-cigarettes such as a provision expressly banning the use of e-cigarettes in the workplace, in company vehicles and at any client locations where your employees are working. A recent tribunal case, the first vaping case to be heard, clearly highlighted how important it is for employers to ensure that the use of electronic cigarettes or “vaping” is included in their no-smoking policy.
• Clearly explain in your policies that failing to adhere to them may result in disciplinary action.
• If you already provide a non-enclosed workplace area for conventional smokers then also consider providing a separate non-enclosed area for employees to use e-cigarettes.